Inspection Matters? Talk to University of Portsmouth Distance Learning Students

“In times when resources are stretched, and there are serious public concerns over child sexual exploitation and other aspects of criminality, within an increasingly complex criminal justice system, the role of open and transparent inspection remains vital.” Jonathan Carver, senior inspector at HMCPSI, spoke candidly on 5 February 2016 to Portsmouth University Institute of Criminal Justice Studies Distance Learning students about how inspection fits into the criminal justice landscape.

Good morning everyone, both to those here in the lecture hall, and others who may be watching from the comfort of their own home.

I am grateful to the University of Portsmouth and Dr. Jacki Tapley in particular, for allowing me to present this the first talk of the day. This session is scheduled for 50 minutes, which will allow ample opportunity for a question and answer session.

When I was asked to give this talk I provided a short biography of my career within the criminal justice arena. As that now spans 35 years, it led me to ponder the changes that I have seen over that comparatively short period of time. I thought I would share some of the main ones with you, before moving on to discuss how the role of inspection fits into the landscape.

As with many things in life, those which we now accept as a normal part of the criminal justice process were innovatory at the time of their introduction.

In 1984 the Police and Criminal Evidence Act was the first attempt in the history of our criminal jurisprudence to codify police powers and responsibilities. It very much remains a living document, with its Codes of Practice reviewed regularly to keep up to date with legislative and other changes.

We now have (from 1986) a prosecutorial system which is separate to (but not divorced from) the investigatory functions.

Certain types of crime are now rightly firmly in the spotlight, for example domestic abuse and child abuse, both recent and non-recent. However, we need to remember that this also puts significant pressure on police resources, and requires both investigators and prosecutors to develop specialist skills.

Hate crime, of any type, is now recognised and prosecuted as such –recent inspection reports on disability hate crime and honour based violence indicate there is still a long way to go before performance reaches acceptable standards. However, it is worth considering that when I started as a prosecutor none of these concepts were recognised as such.

We now have a statutory process to seize the proceeds of crime.

Victims and witnesses are now recognised as central to the delivery of the justice system and are no longer routinely treated as bit players on the stage. There is still a long way to go before these good intentions are translated into a sustainable reality. But, not so long ago the only protection for a victim or witness, regardless of age or the nature of the allegation, was the possibility of a screen to hide them from the defendant. Now we have the video recording of the victim’s evidence in chief in many cases, and good progress is being made on extending this to cross examination in some categories of sexual abuse with child victims. Witnesses can give their evidence through a ‘live link’ either within the confines of the court house or from a remote location, for example a care home or somewhere outside the jurisdiction.

Almost all these measures have been facilitated through the tremendous advances we have seen in technology over the last 35 years. When I started a fax machine was regarded almost as magic, now we have policemen wearing body cameras recording evidence in real time and, despite what some members of the Justice Select Committee have suggested recently, the police and CPS preparation and presentation of cases in the magistrates’ courts is wholly digital, and progress is being made in this regard in the more challenging Crown Court arena. We shall shortly be publishing a joint inspection report which will highlight some of the digital challenges which still exist, but also acknowledge the benefits which can be gained from using technology effectively.

The judiciary is now pro-active in managing cases. No longer can they describe their role as providing merely the venue and the referee. We now have codified Criminal Procedure Rules to which all the parties are required to conform. These rules set out who needs to do what, when and how.

Increasingly we are seeing a Prison Service whose focus is on rehabilitation not merely incarceration, but also the privatisation of many aspects of the latter stages of the process, e.g. probation service providers and parts of the prison estate.

Almost all the changes I have just recounted produced improvement, but few make the criminal justice landscape simpler (a notable exception is the speed with which cases now move from the magistrates’ courts to the Crown Court). The work of every agency is now undoubtedly more complex, crime no longer recognises national boundaries, and the lap top has replaced the sawn off as the weapon of choice – how many of us felt slightly nostalgic when reading the detail of the Hatton Garden burglary. Both prosecutors and investigators need new and ever changing skills.

After years of fat (yes there were some) within the criminal justice agencies we are now in an on-going era of lean – although it is encouraging to note the more positive outcome of the most recent Comprehensive Spending Review for the police and the CPS. It is not trite to say that over recent years all have been required to do more with less, with an expectation that they will deliver a consistently high quality of service.

Let me turn now to the role of the criminal justice inspectorates in assessing whether that high quality service is being delivered. And further whether hard pressed police forces/prisons/CPS Areas need the additional burden of inspection in straightened times.

Almost every aspect of public service and many relating to the private sector are subject to some form of external oversight – education/health/care homes/financial services and each of the criminal justice agencies

Inspection within the criminal justice landscape is not new; the first inspectors of constabulary were appointed in 1856, the Probation Inspectorate was formed in 1936, Prison Inspectorate in 1981, and most recently, in 2000, my own inspectorate for the Crown Prosecution Service. There was also a short lived, between 2003 and 2012, inspectorate of court administration. The role of the Prisons Inspectorate is subtly but importantly different, their remit is not to inspect the Prison Service but rather the care and treatment of prisoners. They throw a light on the darker corners of the wider judicial system.

So what is our role? We do what is says in the title, if not on the tin: we inspect. We do not regulate – none of us has a regulatory function and we cannot mandate any of the bodies we inspect to do anything. Neither are we consultants, we say what needs to be achieved, not how it should be achieved.
Each of us collates independently verified evidence on matters critical to the agencies’ performance. We report our findings publicly, honestly and fairly, thereby allowing others to hold those agencies to account.

Assuring compliance with established procedures should be the responsibility of the agencies – not inspectorates. There is limited value in recommending to somebody to do something they already know they should be doing, but the public has the right to know what the agencies our doing – our role is to highlight whether they are managing their own performance effectively – increasingly we may question whether agencies have the right resources in the right place to perform to expected levels – although we would not necessarily say an agency is underfunded. It is difficult to do that unless one knows where every penny is spent.

We should be inspecting against outcomes, which begs the question as to what is a good outcome, is it something as simplistic as a conviction or more subtle, if a case is handled well throughout its life, does the fact that the jury may acquit mean that it is something less than a good outcome. We are also still hindered by too many different measures with conflicting targets across the criminal justice system – and still no common unit of measurement used by all the agencies, for example the Courts Service measures by case, the CPS by defendant, which can produce very different performance data.

Therefore I would argue that our primary purpose is to give independent public assurance or not as the case may be to ministers and the public, that the agencies we inspect are doing their job properly – we identify when they are not and recommend where improvements are needed – it is for ministers to hold agencies to account and also for Parliament, through the scrutiny of select committees, to require change where change is needed.

In this context I would like to explain the role of the Attorney General in relation to the CPS which is slightly different to the relation of the ministers responsible for the other criminal justice agencies as constitutionally he superintends the CPS, and cannot direct what they do, nor save in the most exceptional of circumstances can he reverse a decision to prosecute – this is of course distinct from the statutory requirement for the CPS to secure the Attorney General’s consent to prosecute certain specific offences. However, the DPP appears regularly before the Justice Committee, which we may brief in advance in respect of the issues they would like to raise.

It is not our role to run the agencies or tell them how to do their job. We make recommendations but it is for them to decide whether to follow them. Failure to follow recommendations, especially when compounded by a lack of improvement, is something that may be commented on in a follow up report – a critical report is likely to be picked up as a bad news story by the media, so there is some motivation to take heed of the recommendations.

Within this context each of the inspectorates has a joint and single role. We may inspect singly on the core functions of the individual agencies, but increasingly this is done by two or more inspectorates on a joint basis. Ministers rightly want assurance on the end to end process not the individual component parts – a fully functioning engine is of little value in achieving the overall purpose of the car if all four tyres are flat.

This work takes us beyond what might be described as our normal inspection bedfellows – for example HMIC works with OFSTED on child sexual exploitation issues and the Prisons Inspectorate works with health regulators and the Quality Care Commission. As you would anticipate my inspectorate works most closely with our colleagues in the inspectorate of constabulary, and we cover a wide range of issues. Last year we published joint reports on disability hate crime/the identification of vulnerable and intimidated witnesses/the quality of both police and CPS charging decisions. The work planned for the coming year is as varied, including on the disclosure of unused material/stalking and harassment/modern slavery and human trafficking.

There is a statutory requirement that we consult on and publish a joint inspection business plan. Regular liaison takes place between the Chief Inspectors and they meet jointly with ministers to discuss and agree priorities. The application of ministerial pressure (if I can put it in those terms) as to what should be inspected varies. My inspectorate is rarely if ever asked specifically to inspect a certain topic by our superintending Minister (the Attorney General). Our colleagues in HMIC, who are superintended by the Home Secretary can not perhaps say the same.

There is an argument that with more of a focus on the end to end processes, a more effective, value for money approach would be to merge the existing criminal justice inspectorates. Whilst this is something one can never rule out and it has been tried in the past, there remains the significant factor that ministers still want assurance on how overall their agencies are performing. The Home Office/Ministry of Justice/Attorney General are all protective of their jurisdictions.

The inspectorates already share significant backroom services for joint inspections – including functions such as external stakeholder communication/printing and media handling and this list is ever increasing.

So in concluding is the question whether inspection can demonstrate it leads to improvement or alternatively can it identify effectively where improvement is needed? I would reiterate that it remains the responsibility of agencies to implement recommendations, we inspect not control

In times where resources are stretched, and there are serious public concerns over child sexual exploitation and other aspects of criminality, within an increasingly complex criminal justice system, the role of open and transparent inspection remains vital and continues to matter.

Thank you for the attention you have paid. I am more than happy to take questions for the time we have remaining.